Humans are naturally curious. We're always seeking answers, whether it's about our favourite celebrity's red carpet looks or baffling mysteries. This insatiable curiosity has fuelled the rise of true crime documentaries, biopics, and non-fiction narratives. While it's true that survivors of gender-based violence are increasingly visible in documentaries and news reports, it's crucial to recognize that there can be a dangerous disparity between the good intentions to want to highlight survivor stories, and the unintended harm resulting from the practices used in creating, distributing, and marketing these films. When viewers and filmmakers function largely as outsiders looking in, the privilege we have frequently takes the form of voyeuristically consuming survivor stories from a position of well-intentioned curiosity and, after the credits roll, safely withdrawing into the comfort of our own lives, away from the trauma we have just experienced vicariously. When we are entrusted with people's sensitive experiences from a time when they were most vulnerable, we must be completely aware of the devastation we might inflict by misusing them, however unintentionally. A recent case has made us rethink our approach to these narratives.
In July 2024, a bench comprising Acting Chief Justice Manmohan and Justice Tushar Rao Gedela issued a notice to the Centre, Nisha Pahuja, an Emmy-nominated filmmaker and the streaming platform Netflix, on a petition filed by the Tulir Charitable Trust for allegedly revealing the identity of a minor gang rape survivor in the documentary film "To Kill a Tiger". The court has asked them to file their replies but refused to pass at this stage any ad-interim order in the PIL seeking to stop streaming of the film over alleged disclosure of the minor's identity.
"To Kill a Tiger" chronicles the story of Ranjit, a farmer in Jharkhand, India, who takes on the fight of his life when he demands justice for his 13-year-old daughter, the victim of a gruesome gang rape in 2017. Directed and written by award winning filmmaker, Nisha Pahuja, the film reveals the tribalist, deeply patriarchal values that ensnare a rape victim. Actors Priyanka Chopra Jonas, Dev Patel and Mindy Kaling serve as executive producers on the film, which has released on Netflix. The film received the highest honour when it was nominated in the "Best Documentary Feature" category at the 96th Academy Awards this year. A documentary which attained such great feats still found itself in a legal soup.
The petitioner claimed that the film disclosed the name of the 13-year-old rape survivor since her face was not masked and she was depicted wearing her school uniform. The petitioner's attorney said that, in spite of the video being shot over 3.5 years, Pahuja made no effort to conceal the minor's identity. The counsel further stated that the survivor was regularly asked to describe the act, and that Netflix was aware of the situation. The petition claimed that the video violated the POCSO Act, the Juvenile Justice Act, and the Bharatiya Nyaya Sanhita (BNS), which prohibits exposing the identify of a child rape victim.
The survivor, it was claimed, could not have refused consent to disclose her identity after turning 18 due to a "kind of Stockholm syndrome" implying that the survivor felt compelled to comply with the filmmaker's requests. On the flip side, counsel for the respondent argued that the girl's parents gave consent during the 3.5 years of recording the documentary because she was a minor at the time. It was also contended that the limits on exposing a minor's identity only apply while they are minors; after the victim reached maturity, she had the freedom to choose whether or not to talk about her ordeals.
While analysing this case it becomes imperative to go over several laws in India that protect the identity of rape victims. As per Section 23 of The Protection of Children from Sexual Offences (POCSO) Act 2012, there is an absolute prohibition from revealing the identity of a child rape survivor or revealing any information that could lead to a disclosure of the child's identity. Under the proviso to Section 23(2), only a Special Court competent to try the case can grant permission for such disclosure if in its opinion such a disclosure serves the interest of the child. The filmmaker must address this question: did she get Special Court's approval to film the minor child? If the filmmaker asserts that the survivor waived the embargo after attaining majority, the legitimacy and significance of that waiver will still be determined by whether the legally mandated procedure was adhered to during the filming when she was a minor.
In the case of adult survivors, Section 72 of the Bhartiya Nyaya Sanhita (BNS), 2023 permits "the printing or publication of the name or any matter which may make known the identity of the victim" if this is done with the survivor's written authorisation. POCSO, which covers children, is even more stringent than the Penal Code in this regard. The goal of this strictness is to avoid the exploitation of survivors not only by the media but also by their next of kin, who – for profit or any other reason, as detailed by the Supreme Court in Nipun Saxena vs Union of India – may not necessarily act in survivors' interests. This is why POCSO permits a child survivor's identity to be revealed only with the written consent of a Special Court – not a parent, not a relative, not a guardian, not a social worker, not an activist, not an NGO, but only a Special Court. The argument that the survivor in "To Kill a Tiger" granted permission for her identity to be revealed on becoming an adult also leaves the question of how Pahuja obtained consent to interview her as a child in the first place.
Section 74 of the Juvenile Justice Act, 2015, states that no report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall lead to the identification of a child victim. Exceptions allowed only if in child's best interest, with written justification. Moreover, Justices Madan B. Lokur and Deepak Gupta's bench issued a directive in December 2019 reinforcing the above and further stating that FIRs filed for offences under the POCSO Act and the BNS that constitute rape should not be made public. The judges cautioned the media against "sensationalizing" similar cases and urged caution and reiterated the importance of Sections 24(5) and 33(7) of POCSO to ensure that the child's identity is not revealed at any point. They highlighted the power of the Special Court to permit disclosure of the child's identity only if it is in the child's best interest, such as when identification is essential for the investigation.
Finally, we must recognise that, when executed correctly, films about trauma survivors have the tremendous capacity to break down barriers of silence, dispel shame, and establish an environment of empathy and change. We can do this if filmmakers treat such cases with sensitivity and are aware of the relevant legislation.
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